IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40962 Summary Calendar

DANIEL FONSECA,

Plaintiff-Appellant,

versus

K. KUYKENDALL; MARY GOTCHER; JOHN EATON; OWEN J. MURRAY; JASON CALHOUN; ROBERT A. BROCK; UNIDENTIFIED REEDING, Doctor; MELTON BROWN; DON JOHNSON; UNIVERSITY OF TEXAS MEDICAL BRANCH GALVESTON,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:00-CV-172 - - - - - - - - - - March 21, 2002

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Daniel Fonseca, Texas prisoner #579623, appeals the district

court’s denial of several motions, including his requests for

injunctive relief. He also challenges the dismissal as frivolous

of his

complaint alleging deliberate

indifference to his serious medical needs. Fonseca has failed to

adequately brief his argument that the court abused its

discretion in denying injunctive relief. He simply asserts that

the denial was error in light of (1) his 77 exhibits (the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-40962 -2-

contents of which he does not discuss), and (2) his continuing

pain. Fonseca fails to address the district court’s reasons for

denial of his motions for injunctive relief, i.e., that he failed

to show a substantial likelihood of success on the merits of his

claim or that he faced a substantial threat of irreparable

injury. The argument is therefore waived. See Yohey v. Collins,

(5th Cir. 1993).

Fonseca’s argument that the magistrate judge erred in

denying his motions for appointment of counsel is without merit.

Fonseca has failed to show the requisite exceptional

circumstances. See Ulmer v. Chancellor,

(5th

Cir. 1982).

Fonseca has failed to adequately brief his assertion that

the magistrate judge erred in refusing to admit into evidence all

of his medical records. Other than this assertion, he makes no

legal argument. The argument is therefore waived. See Yohey,

. As for the denial of his “motion for the court

to disclose if exhibits were admissible in evidence,” the

magistrate judge did not err in denying Fonseca’s motion on the

basis that granting it would be the equivalent of an advisory

opinion.

While Fonseca is correct that his motion for default

judgment was not ruled upon, the court’s failure to rule may be

viewed as an implicit denial of the motion. See Mason v. Lister,

(5th Cir. 1977). The subsequent dismissal of

Fonseca’s complaint as frivolous was an implicit determination

that Fonseca was not entitled to default judgment even if the No. 01-40962 -3-

defendants were technically in default. See

Fonseca’s

challenge to the magistrate judge’s statement that defendants

Johnson, Calhoun, Eaton, and Murray had filed an answer on

January 12, 2001, is unsupported by the record. Those defendants

did file an answer on January 12, 2001.

Fonseca argues that the defendants were deliberately

indifferent to his serious medical needs by denying his request

to be examined by a colon specialist to determine whether he

needed surgery for his hemorrhoids and to evaluate the need for

treatment. See Estelle v. Gamble,

(1976).

Fonseca’s pleadings and the testimony at the Spears** hearing

revealed that Fonseca was treated by medical personnel and was

supplied with hemorrhoid cream even though examinations by

medical staff revealed no hemorrhoids existed. Fonseca has not

shown deliberate indifference to his serious medical needs. See

Farmer v. Brennan,

(1994); Norton v. Dimazana,

(5th Cir. 1997). Insofar as Fonseca is

complaining about medical care and treatment that he received,

his allegations merely reflect his disagreement with the medical

tests and treatment ordered by the medical staff. The district

court did not abuse its discretion in dismissing his complaint as

frivolous. See Norton,

.

Fonseca’s appeal is without arguable merit and is frivolous.

See Howard v. King,

(5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.

** Spears v. McCotter,

(5th Cir. 1985). No. 01-40962 -4-

R. 42.2. The dismissal of this appeal and the dismissal as

frivolous and by the district court each count as a “strike” for

purposes of

(g). See Adepegba v. Hammons,

(5th Cir. 1996). We caution Fonseca that once

he accumulates three strikes, he may not proceed in forma

pauperis in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury. See

(g).

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.